Graham v. Yates

• Decision Date: 19 November 1912
• Docket Number: Case Number: 2199
• Parties: GRAHAM v. YATES et al.
• Court: Oklahoma Supreme Court

1912 OK 723

128 P. 119

36 Okla. 148

GRAHAM v. YATES et al.

Case Number: 2199

Supreme Court of Oklahoma

Decided: November 19, 1912

Syllabus

¶0 1. APPEAL AND ERROR-- Review. This court will not review an alleged error of a trial court, unless the error complained of is assigned for review by the petition in error as well as by the motion for a new trial.

2. SAME--Motion for New Trial. Error in the assessment of the amount of recovery cannot be considered, unless such error is alleged in the motion for a new trial.

3. SAME--Assignment of Error--Insufficiency of Damages. An assignment of error which alleges that the verdict is not sustained by the evidence will not cover the question of error in the assessment of the amount of recovery.

4. SAME--Motion for New Trial. Where the evidence is sufficient to sustain a verdict for a greater sum than that found by the jury, this court will not examine the record to ascertain whether the exact sum so found was the correct amount, where error in the assessment of the amount of recovery is omitted from the motion for a new trial.

H. B. Lockett, for plaintiff in error.

Wilkinson & Speer, for defendants in error.

SHARP, C.

¶1 Plaintiff sold defendants property, both chattel and real, of the alleged value of $ 10,749.28, on which defendants paid $ 10,549.28, leaving a balance due, as claimed by plaintiff, of $ 200, for which amount, with interest from September 18, 1909, suit was brought. In the trial in the justice's court it seems that defendants offered to confess judgment in the sum of $ 87.48, and for all costs then properly chargeable to them, but in the answer filed in the county court on appeal defendants denied being indebted to plaintiff in any sum. The condition of the pleadings, however, is immaterial in view of the condition of the record, as will be shown. The verdict of the jury was for $ 90, with interest thereon at seven per cent. per annum from the 18th day of September, 1909. Of this verdict in his own favor plaintiff complains. Seventeen grounds of error are set forth in the motion for a new trial. Section 5825, Comp. Laws 1909, provides that the verdict of the jury may be vacated and a new trial granted on the application of the party aggrieved for any of the causes named in said section, which materially affects the substantial rights of the party aggrieved. The fifth ground in the above-numbered section reads:

"Error in the assessment of the amount of recovery, whether too much or too small, where the action is upon a contract, or for an injury or detention of property."

¶2 The motion for a new trial assigns as grounds therefore that the verdict of the jury and the judgment of the court rendered thereon were contrary both to the law and facts proven; that the court erred in the admission of testimony, in its instructions to the jury, and in failing to instruct the jury as requested by the plaintiff. But nowhere is complaint made of error in assessment of the amount of recovery. The action is one founded on contract, and therefore the fifth subdivision of paragraph 5825, supra, is the provision of the statute under which plaintiff in error should have brought himself. He is not complaining of the verdict given in his own favor, but alone of the insufficiency thereof. It is urged that the testimony was sufficient to have warranted a verdict in his favor for the amount sued for, and in his brief plaintiff in error asks this court to render judgment in his favor for the full sum in controversy. The question here presented was before this court in Southwestern Cotton Seed Oil Co. v. Bank of Stroud et al., 12 Okla. 168, 70 P. 205, where the verdict of the jury was in favor of plaintiff for $ 500, and it was insisted that the verdict should have been for the full amount in controversy, $ 1,269.57. In the motion for a new trial, it was insisted that the verdict was not sustained by sufficient evidence, and was contrary to law. The fifth ground of the statute was not included in either the motion for a new trial, or in the petition in error. In affirming the judgment, the court said:

"This court has repeatedly held that it will not attempt to review any alleged error of a trial court, unless the error complained of is in

...